Tuesday, June 12, 2012

This announcement last month from Neelie Kroes, Vice-President of the European Commission responsible for the Digital Agenda, provides an introduction to a huge amount of analysis into net neutrality undertaken by BEREC, the Body of European Regulators for Electronic Communications. Further background here.

BEREC's analysis sought to investigate the detail of net neutrality issues and concerns, to provide guidance for European telecommunications regulators to enable them to respond appropriately. BEREC's recommendations, endorsed by Neelie Kroes, are based on the principle of transparency, that customers should get what they pay for. At the same time the recommendations acknowledge the importance of not standing in the way of developments in the marketplace, so long as consumers have choice and the ability to switch service provider quickly and easily should they choose to do so.

BEREC published its recommendations on transparency in December 2011, prior to the recent announcement, in the form of Guidelines on Transparency in the scope of Net Neutrality: Best practices and recommended approaches. This acknowledged that while transparency is important, alone it is "probably insufficient to achieve net neutrality, firstly because it requires other factors in order to produce results – the existence of competition in the market, the reduction of barriers to switching are, among others, important factors that, alongside transparency, can contribute to achieving the objective of net neutrality." Transparency in this context is about much more than headline speeds:

"...details regarding services with fixed connectivity should not be limited to a single “maximum speed” figure. The real values typically achieved at a certain time should be detailed: actual download but also upload speeds, the difficulties that may impact their provision, and the conditions to deliver minimum levels, when these are offered. Furthermore, information on other elements regarding the quality at which the service is offered, such as delay, jitter, packet loss or packet error, might be of interest..."

But only to a very informed customer would be my guess. BEREC also recommended that:

"...providers should clearly explain any general limitations, as well as any consequences of exceeding such limits. In this regards, explicit conditions such as data caps and download limits seem to be preferable over fair use policies. Information on traffic management techniques, applied either on types of traffic or content, should be provided to end users along with information on about how these techniques may affect the end users’ access service. Application agnostic and application specific traffic management techniques
should be clearly distinguished."

“In order to prevent the degradation of service and the hindering or slowing down of traffic over networks, Member States shall ensure that national regulatory authorities are able to set minimum quality of service requirements on an undertaking or undertakings providing public communications networks...”

The framework categorises the effect of traffic management practices into two main groups: degradation of the performance of the Internet access service as a whole (i.e. everything slows down), and degradation of individual applications using the access (for example, throttling peer-to-peer file sharing). A useful distinction.

This summary of BEREC's programme of work in this area is from the explanatory paper:

Guidelines on Transparency in the scope of net neutrality: Transparency is mandatory for any traffic management practice, and helps to foster competition and discipline ISPs through enhanced competition and the users’ ability to exercise choice.

Framework and Guidelines for QoS in the scope of net neutrality are about assessing "degradation of service" and the conditions and ways to use the new article 22(3) USD, i.e. how to intervene when deemed necessary.

Differentiation practices and related competition issues in the context of net neutrality is an economic analysis about which practices may cause harm to end-users, and under which conditions.

NGN IP interconnection & net neutrality is an overview of IP interconnection markets and economic relationships between operators assessing the regulation with regard to IP interconnection in the context of Net Neutrality.

The first bullet above was addressed by the guidance published in December 2011 discussed earlier, the remaining three are addressed by the three consultation documents I mentioned previously, against which comments are invited by 31st July 2012. The same explanatory document includes this summary of the observations made and conclusions drawn by BEREC thus far:

While not providing a guaranteed delivery of data, the best effort approach of the Internet does not necessarily imply low performance.

The separation of network and application layers is a characteristic feature of the best effort Internet, and it has enabled innovation and growth.

The IP interconnection market has developed very well so far without any significant regulatory intervention.

While traffic management and other differentiation practices are not intrinsically harmful, they are nonetheless capable of being used for questionable purposes or in an inappropriate manner.

Providing information on these restrictions is mandatory – the information must be understandable and comparable for end-users to exercise choice, and accurate enough for NRAs to monitor ISPs’ practices.

The situation is different in different Member States, and BEREC is proposing general criteria to enable NRAs to evaluate traffic management practices on a case-by-case basis in their respective markets, including e.g. whether they are application-agnostic and whether the end user has control, whether the practice is objectively justified, proportionate and non-discriminatory.

Beyond this, given the complex and evolving nature of the Internet, detailed prescriptive rules do not seem appropriate at the moment.

"BEREC is committed to the open Internet, and believes that the existing regulatory tools should enable NRAs to address net neutrality related concerns for the time being"...the UK would appear to concur with this view, as discussed in this previous post (commentary from ISP Review here, with their take on on BEREC's recent recommendations here).

Finally, this development from the European Telecommunications Network Operators' Association (ETNO, ISP Review coverage here and ZDNet's here) is interesting in the light of BEREC's recommendations. ETNO is calling for changes to the International Telecommunications Regulations to permit new commercial arrangements and encourage future growth:

"By endorsing the concept of “quality based delivery”, it will be possible to establish new interconnection policies based on the “value” of the traffic (not only on the “volume”), enabling new business models and implementing an ecosystem where operators’ revenues will not be disconnected from the investment needs made necessary by the rapid growth of Internet traffic."